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We've talked a lot in the past about the impossibility of doing content moderation well at scale, but it's sometimes difficult for people to fathom just what we mean by "impossible," with them often assuming -- incorrectly -- that we're just saying it's difficult to do well. But it goes way beyond that. The point is that no matter what choices are made, it will lead to some seriously negative outcomes. And that includes doing no moderation at all. In short there are serious trade-offs to every single choice.Probably without meaning to, the NY Times recently had a pretty good article somewhat exploring this issue in looking at what Facebook is trying to do prevent suicides. We had actually touched on this subject a year ago, when there were reports that Facebook might stop trying to prevent suicides, as it had the potential to violate the GDPR.However, as the NY Times article makes clear, Facebook really is in a damned if you do, damned if you don't position on this. As the Times points out, Facebook "ramped up" its efforts to prevent suicides after a few people streamed their suicides live on Facebook. Of course, what that underplays significantly is how much crap Facebook got because these suicides were appearing on its platform. Tabloids, like the Sun in the UK, had entire lists of people who died while streaming on Facebook and demanded to know "what Mark Zuckerberg will do" to respond. When the NY Post wrote about one man committing suicide streamed online... it also asked for a comment from Facebook (I'm curious if reporters ask Ford for a comment when someone commits suicide by leaving their car engine on in a garage?). Then there were the various studies, which the press used to suggest social media leads to suicides (even if that's not what the studies actually said). Or there were the articles that merely "asked the question" of whether or not social media "is to blame" for suicides. If every new study leads to reports asking if social media is to blame for suicides, and every story about suicides streamed online demands comments from Facebook, the company is clearly put under pressure to "do something."And that "do something" has been to hire a ton of people and point its AI chops at trying to spot people who are potentially suicidal, and then trying to do something about it. But, of course, as the NY Times piece notes, that decision is also fraught with all sorts of huge challenges:

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We cover a lot of weird and pointless lawsuits here at Techdirt. This one, filed by Israeli radio broadcaster Galit Gura-Eini, is one of the weirdest. At first brush, it seems like she might have a legit legal complaint on her hands.

While a long shot, we've previously discussed how the outgoing House and Senate could have voted to reverse the FCC's repeal of net neutrality using the Congressional Review Act (CRA). And while the Senate voted 52 to 47 to approve the move last May, efforts to get the 218 votes needed in the House had been stuck in neutral as House Representatives remained blindly loyal to their real constituents: AT&T, Verizon, and Comcast.As a result the clock ran out, and that route for restoration of the rules has died a whimpering demise. As is his tendency, FCC boss Ajit Pai couldn't just savor the "win." He felt compelled to issue a public statement (pdf) in which he not only gloats over the failure, but packs a large number of false statements into a relatively short paragraph:

In mid-January, the EU is hoping to finalize the EU Copyright Directive, including Article 13, which will effectively create mandatory copyright filters for many internet websites (while, laughably, insisting it creates no such burden -- but leaving no other option for most sites). One of the key arguments being made by supporters of Article 13 is that it's crazy to think that this law will be used to block legitimate content. This is pretty silly, considering how frequently we write about bogus DMCA takedowns. As if trying to prove just how bad they are at properly classifying infringing content, the EU recently released its "Counterfeit and Piracy Watch List", which is a sort of EU version of the USTR's "notorious markets" list. That list has been widely mocked for basically declaring any site that Hollywood doesn't like "notorious", even if no court has ever ruled that it's breaking the law.It would appear that the EU list has the same sort of problem. For example among the sites listed in the EU report is Cloudflare, a platform used by tons of internet companies (including Techdirt) as a CDN or to protect against DoS attacks (among other things). Cloudflare is simply a tool -- like a phone line -- that tons of internet companies use. If some of them are doing things that are against the law, that should be on those sites, not Cloudflare. Unfortunately, the EU doesn't seem to care.

Whenever we hear new or renewed calls for more ways for antipiracy outfits and copyright holders to extrajudicially get content and/or sites taken down, there always seems to be one curious omission in the discussion: that antipiracy outfits generally suck at identifying actual infringing content. This is a strange omission, considering that creating ways for content to be taken down without a court's oversight rests the entire reputation for this practice on reports of infringement being accurate. Those of us who have taken to screaming how ripe all of this is for abuse do so because of the collateral damage it causes. Claims to the contrary have to rely on reports generally being accurate.They aren't. In fact, they aren't even close. It's not going too far to say that antipiracy groups of all entities should be well-suited in identifying piracy. And, yet, they quite often target innocent sites that simply post factual information that does not include pirated files, including sites that do factual reporting on torrent availability. One such site is SweTracker, which focuses on detailing Nordic torrent releases, when they become available, and to whom they are attributed.

The prosecution of former NSA contractor Hal Martin continues. Martin somehow managed to exfiltrate sensitive documents and code for nearly 20 years without the NSA noticing. It finally started paying attention after its hacking tools and exploits made their way into the hands of the public via the "Shadow Brokers." These tools then made their way into the computers of the public, wreaking worldwide havoc and giving the leaky agency -- whose literal middle name is "Security" -- another PR black eye.Hal Martin was suspected of handing over tools to the Shadow Brokers but the charges against him are solely related to the mishandling of classified info, indicating the feds no longer believe Martin was involved. But this original suspicion was apparently enough to justify the FBI raid of Martin's residence, according to the federal judge handling his case. The probable cause appears to have been generated by a tweet from Martin's Twitter account, at least according to what can be gleaned from the redacted order [PDF] handed down by Judge Richard Bennett. Josh Gerstein of Politico has the details.

Back in October, comedian Hasan Minhaj's show Patriot Act on Netflix did a pretty thorough critique of Saudi Arabia and its leader Mohammad bin Salman, often referred to as MBS. Go watch it here:It covers a lot of ground, from the death of Jamal Khashoggi to MBS's arresting of a bunch of his cousins to the catastrophic situation in Yemen... and the complicity of the US government and much of Silicon Valley who has taken Saudi money.Not surprisingly, the Saudi government was not thrilled with this episode, or the fact that it was available via Netflix in the country. So, as first reported by the Financial Times (behind a paywall), and since reported in tons of other places, Netflix has agreed to pull that episode in Saudi Arabia in response to a "legal request."Apparently, the "legal request" referenced a cybercrime law that says "production, preparation, transmission, or storage of material impinging on public order, religious values, public morals, and privacy, through the information network or computers" is a crime that can lead to imprisonment and fines. Cyber lese majeste, basically.Not surprisingly, the move by Netflix is leading to tons of criticism directed at both Netflix and Saudi Arabia (but mostly at Netflix for caving).Of course, this has also generated a lot more interest in that particular episode -- which, again, Netflix has left up on YouTube (and which, it appears, is still available via YouTube in Saudi Arabia). It is the Streisand Effect in action -- and, one might argue that Netflix knew that this was the likely outcome. As such, it not only gets to "avoid" whatever criminal punishment was being threatened by Saudi Arabia, but also gets more attention to this particular pointed criticism of MBS... and, as a side benefit, gets a lot more attention for its Patriot Act show.

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Let's do a bit of stage-setting for readers who aren't aware of Fortnite, the multiplayer online battle arena that is generating millions of dollars for Epic Games. Fortnite is multicolored, vibrant playground of death wherein dozens of combatants fight to be the last man/woman standing. Also included are tools to build things (hence the "fort" half) -- like walls -- to surround yourself with to stave off the inevitable. ("Inevitable" meaning a 12-year-old halfway around the world celebrating your death with a purchased "emote.")Fortnite is free-to-play. But it still makes millions of dollars. It does this by selling players cosmetic items. After exchanging real money for Fortnite funbux, players can purchase pickaxes, backpacks, and "emotes." The last one on the list has translated into a flurry of litigation over the last month.Emotes are mostly dances. Being that there's a limited number of instantly-recognizable dances available, Epic Games has been plucking new "emotes" from the vast pop culture wasteland. It then sells these animated sequences to players, making each celebration dance no more individually expressive than the millions of imitators spawned by the pop culture figures Epic is approximating.Three lawsuits alleging copyright infringement have been filed against Epic Games in the last month. Rapper 2 Milly, the co-star of 90s sitcom "The Fresh Prince of Bel-Air" (Alfonso Ribeiro), and a precocious teen better known as "Backpack Kid" (born Russell Horning) have all sued Epic Games for turning their distinctive dances into pay-to-play emotes.All three lawsuits have been filed by Pierce Bainbridge Beck Price & Hect of Los Angeles, California. While other pop culture figures have lamented Fortnite's profitable borrowing of their dance moves, only those retaining this law firm have actually acted on it.Here's the things about the lawsuits: while they all allege copyright infringement, no copyright infringement has actually occurred. This is an extremely difficult hurdle to leap when suing over copyright infringement.First off, the Copyright Office isn't willing to extend protection to all dance moves. As many can overlap with normal human body movements, there are some specifics that must be met. And the shorter the dance is, the less likely it is to be protected.

We've already gone over how fifth-generation "5G" wireless, while a notable improvement in network speed and performance, has been obnoxiously over-hyped by hardware vendors and cellular carriers. We've also noted that in reality, broad availability of 5G-capable handsets and networks are still quite a few years away, and when products do arrive, they won't, contrary to some claims, magically fix the myriad of problems deeply woven into the U.S. broadband industry, most of which have to do with lobbyist political power and the monopoly domination of cellular tower backhaul.AT&T's been among the biggest hype generators for 5G, even though its early offerings on this front, while fast, tend to suffer from high prices and low usage caps (did you expect something else?). In addition to over-hyping 5G's impact, AT&T has been busy both distorting what 5G actually is... and dramatically over-stating actual availability. For example, last year AT&T introduced what it called "5G Evolution" wireless connectivity, which wasn't actually 5G, but a collection of tech (specifically 4x4 MIMO (multiple input, multiple output) antenna and 256 QAM technologies) that simply made existing LTE networks somewhat faster.AT&T's since taken this head fake to an entirely new level. Last week, for example, AT&T began replacing the "LTE" (4G) notifier on many users phones with a "5G E" symbol, despite its phones and networks not actually being upgraded to 5G yet:In short, AT&T is taking some modest network improvements to existing 4G LTE networks, and confidently calling them 5G, knowing full well the Pai FCC isn't likely to do much of anything about it. Confusing customers into thinking AT&T's ahead in the 5G "race" (which isn't a race) appears to be the whole point:

Gaming Like It's 1923: The Newly Public Domain Game JamHappy new year, everyone. Every year, soon after the new year, we post a somewhat disappointing post describing how, once again, no new works have gone into the public domain in the US, because various lobbying interests have continued to extend copyright over and over again, with the last such extension coming in 1998 (the last time old works automatically entered the public domain in the US), better known as the Sonny Bono Copyright Term Extension Act. It's been 21 years of nothing, and that's been quite sad. But this year is different. Thanks to public interest in copyright and people getting increasingly angry about our locked up culture, Hollywood didn't even make a serious attempt to extend copyrights again (to be fair, they put out some feelers, and when they realized it would be a total disaster, they let it go).So this year, we've been seeing tons of celebratory articles, highlighting how works from 1923 are finally entering the public domain (WAY later than they should have, but not much we can do about that now). So, it's time to celebrate. And what good is a public domain if you don't do anything with it? So, today, now that these works are in the public domain, we're announcing the Gaming Like It's 1923 Newly Public Domain Game Jam. We've teamed up, once again, with Randy Lubin from Diegetic Games, who was our partner on the (public domain) CIA: Collect It All card game, to run this game jam.If the idea of a game jam is new to you, it's pretty simple: it's just a month-long contest for you to create games: these can be video games, board games, card games, RPGs, interactive fiction, etc. The one key requirement: it must use something from 1923 that has just entered the public domain. Those works are free for anyone to use, and we should celebrate that by actually making use of them to do something fun. So go create a game and submit it. There are some more details on the rules/restrictions and some pointers on the game jam page. Go make Sonny Bono proud (despite the fact that he believed that, contrary to the Constitution, copyright should last forever). We're offering up copies of our CIA game and some of our copyright-related t-shirts as prizes.If you need some source material for inspiration, Duke's Center for the Study of the Public Domain already has a nice page of highlights of newly public domain material, as well as a nice spreadsheet with even more works. Also, there have been a ton of news articles in the lead up to this first US public domain day in twenty-one years, that might also get you thinking. Here's ones from the Smithsonian, the NY Times, BoingBoing, NPR, Quartz, Motherboard, The Stranger and Slate, so start hunting around for great cultural works to build on...We've already put together an all-star cast of judges, mixing folks from both the worlds of gaming and copyright/public domain, including folks like Cory Doctorow, Whitney "Strix" Beltran, Dan Bull, Rebecca Tushnet, Nicky Case, Mark Lemley, Daphne Keller, Jason Scott, Jason Morningstar, J Li, Eric Goldman, Carolyn Homer, Albert Kong and we'll likely be naming a few more judges over the course of the month. Stay tuned.

Techdirt has been running since 1997 in one form or another, but since 2008, each year for the last post of the year I've written something where I do a little reflection on the year. The initial reasoning behind this was in response to some questions about how I could possibly stay happy while so frequently writing about depressing stuff, and that's what many of the posts have been about: the general optimism of the forward progress of innovation, despite the annoying hurdles and roadblocks that get in the way. Rage all you want at the unfortunate impediments to bringing about a better world, but don't become so cynical that you miss out on celebrating all the wonderful things that have improved lives around the world in the meantime. If you want to view those older posts, here they are:

It's that time again: for our final comments post of 2018, we're looking back on the comments you voted the funniest and most insightful throughout the year. As usual, we've got the top three winners from each category, plus a special outlier that racked up a lot of votes across the two categories combined. For those of you who want to see this week's winners, here's first place for insightful, first place for funny, and the double-winner that took second place in both. Now, on to the yearly round-up...The Most Insightful Comments Of 2018Back in July, we covered the story of a restaurant that was accused by the local police union of serenading some officers with N.W.A.'s Fuck Tha Police, only for CCTV footage to reveal that the incident never happened — one employee just mouthed the words from across the restaurant, and the police department itself had to call out the union for lying. This garnered our 2018 first place winner for insightful from an anonymous commenter:

Five Years AgoThis week in 2013, the feds were begrudgingly loosening the reins on some secrecy in minimal ways, releasing a redacted version of their secret interpretation of the PATRIOT Act (which just a month ago they said could not be revealed) and declassifying some court filings in long-running cases against the NSA while still saying the state secrets mean the court should kill the cases. The 60 Minutes journalist who turned the show over to NSA propaganda was insulting all his critics while the show was giving even more airtime to lies from national security officials (and Rep. Mike Rogers was out doing his own anti-Snowden TV appearances). And we took a look at how if Snowden returned to the US to face trial, he wouldn't be able to make any kind of whistleblower defence — and noted that even though, in private, James Clapper was saying he wasn't worried about terrorists changing tactics following the leaks, in public we had four star generals screaming at reporters and NSA apologists calling for Snowden to be hanged.Ten Years AgoThis week in 2008, Warner Music decided to play hardball with YouTube by removing all its music from the platform — or so it seemed. Later reports suggested that Google took the material down in response to Warner's demands for more money, because record labels just didn't have the leverage they thought in this fight. Though they were still doing fairly well in their battle to shoot down or compromise every innovative new music startup. And though it was just the previous week that the RIAA had announced an end to its lawsuit strategy, they were caught still suing — and excused their way out of it by insisting they couldn't stop lawsuits that were already in motion. Plus, a closer look at the voluntary three-strikes system the agency was touting as a replacement for the lawsuits revealed that the whole thing was more about sidestepping due process than stopping what they were doing, so at least some ISPs were pushing back.Fifteen Years AgoAnd just as three-strikes were the replacement for lawsuits, so too were lawsuits the replacement for RIAA subpoenas this week in 2003. Following the previous week's court ruling for Verizon that the agency can't just subpoena ISPs for customer info (which differed from a recent ruling for Charter, who went back to court to get that fixed), the RIAA decided to start filing lots of John Doe lawsuits first, and boy did they not waste any time getting started. There had been a lot of twists and turns in internet law throughout the year, and some more good legal decisions we feared would lead to bad laws. But at least one good decision affirmed that "DVD Jon" did nothing wrong by creating and releasing DeCSS.

When all you have is a war hammer, everything looks like a war. That's how Wisconsin law enforcement viewed the task it was given: collection of an $80,000 civil judgment from a resident of Marathon County. What should have been a deputy or two approaching the resident and apprising him of his legal options, the Marathon County Sheriff's Department chose to handle it this way:

Heightened sensitivities and a law enforcement track record of overreaction has prompted a New York Sheriff's Office into actions that will probably result in at least one civil rights lawsuit. When students of a New York school decided to create a couple of videos and post them to Instagram, the Sheriff felt compelled to violate the students' Fourth Amendment rights after disregarding their First Amendment rights.

Going back more than five years, we've been warning about the dangers of moving copyright enforcement down the stack, away from the actual hosting companies deeper and deeper into infrastructure. This was, of course, part of the goal of SOPA -- to make infrastructure companies liable for infringement, and to force them to shut down entire sites. But that's exactly a key part of our concern. Infrastructure players have only a single remedy: shut down an entire site, including anything that's not infringing, to deal with claims (never adjudications) of infringing content. And yet, legacy copyright companies have been going after domain registrars for years.We were particularly troubled by a ruling in Germany back in 2014 saying that a registrar could be liable for infringement on a site using a domain from that registrar. And while it's taken years, it appears that that ruling has now been upheld by a higher court.The quick details: Universal Music went after a domain registrar, Key-Systems, in Germany because it had registered the domain name for a torrent site H33t.com. The court forced the registrar to kill the domain, and on appeal that ruling has been upheld, with a specific ruling that a domain registrar can be liable for infringement on a site:

It appears fake news is a crime in the United States -- at least in Ohio. Jacob Sullum at Reason reports an Ohio woman has just been jailed for repeating an unfounded rumor about a gun being found on school grounds.

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Back in September, we wrote about how the GDPR could actually undermine privacy, when Jean Young noted that, when someone hacked into her Spotify account, they were able to download her entire data history. And now there's another example of the privacy implications: Amazon recently responded to a GDPR data export request by sending 1,700 voice recordings... to the wrong user.

For years, we've noted how popular TV ratings firm Nielsen has turned a bit of a blind eye to cord cutting and the Internet video revolution, on one hand declaring that the idea of cord cutting was "pure fiction," while on the other hand admitting it wasn't actually bothering to track TV viewing on mobile devices. It's not surprising; Nielsen's bread and butter is paid for by traditional cable executives, and really, who wants to take the time to pull all those collective heads of out of the sand to inform them that their precious pay TV cash cow is dying?Eventually, the cord cutting trend became too big to ignore, forcing Nielsen to change its tune and start acknowledging the very real trend (though they called it "zero TV households" instead of cordcutters). Broadcasters (especially those hardest hit by cord cutting) didn't much like that, and began bullying the stat firm when it showed data that didn't jive with the view a foot below ground. While Nielsen slowly improved its methodologies, it would occassionally back off on certain data collection and reporting changes if the cable and broadcast industry complained loudly enough.Ironically, this fealty to wishful thinking may not pay dividends for Nielsen. Nearly every broadcasters in your cable lineup is expected to launch their own streaming service by 2022. Many of these companies (like CBS) are now considering ditching Nielsen because, they claim, it's charging too much money for a user tracking system that hasn't adapted for the streaming era:

California has long protected police officers from accountability. Most police misconduct records are impossible to obtain via public records requests. The restrictions covering these personnel files even prevent defense attorneys and prosecutors from accessing them, allowing cops with lousy track records for telling the truth present testimony as if they've never committed a misdeed or told a lie.After years of legislative surrender to police union pressure and an overall deference to all things law enforcement, this year's model finally managed to get a records reform bill to land on the governor's desk. The new law goes into effect January 1, 2019, opening up access to a number of records Californians have never seen.

We've written many times about how the patent system is a poor fit for software. Innovation in the U.S. software industry happens despite, not because of, the thousands of software patents that are granted each year.But software is not the only industry where patents make very little sense. In the 1990s, the Federal Circuit opened the door to patents on methods of doing business. While the Supreme Court tried to undo some of that damage, financial institutions are still hit with patent lawsuits. Many of these suits come from trolls that don't produce anything. And yet, just as in the tech sector, there are some financial companies that keep heading back to the U.S. Patent and Trademark Office seeking a 20-year monopoly on some tactic or another.This month, we're highlighting U.S. Patent Number 10,147,140, which was recently granted to BNY Mellon Bank. The first claim of the '140 patent uses a lot of financial jargon to describe an extremely simple process: checking social media for a particular event or statement, then making a trade based on that "investment triggering content." One example of that: making a trade because someone put a hashtag in a tweet.Even if this was a new product idea or investment strategy, it is not a new invention. The trend of stock market trading has been clear now for decades: automated trading has become faster and more computerized each year. BNY Mellon Bank did not invent computerized trading, social media, or anything else remotely technical. Rather, its patent proposes the idea of trading based on a social media event.In the patent prosecution documents, the patent examiner even starts out by admitting that "the concept described in claim 1 is not meaningfully different than the economic concept… found by the courts to be an abstract idea." Appropriately, the examiner cited Alice v. CLS Bank, which forbids "do it on a computer"-type patents. Similarly, Alice should clearly forbid patents on very old practices, like trading stocks, and simply adding in "social media monitoring.But then the examiner goes on to agree with the applicant's specious argument that just because the claim has additional limitations—such as "using a processor to withdraw[] funds from a customer financial account and then purchase shares," and an interface that shows social media information—it becomes eligible. "When viewed as an ordered combination, the additional limitations amount to significantly more than the abstract idea," the examiner concludes, "[t]he idea is patent eligible."Adding generic computer processes shouldn't have made this patent eligible. So how does it happen? One big problem is that incentives in the patent application process line up to favor the granting of patents. Patent examiners are graded through a "count" system that gives them progressively less credit as persistent applicants file new amendments, arguments, requests for continued examination, and continuation applications. This system makes it impossible for the Patent Office to ever finally reject an application. There is only one way for the Patent Office to get rid of a persistent applicant: give them a patent.In this case, the BNY Mellon's lawyers essentially just pounded their fists on the table. They offered nothing more than the bare insistence that the patent included an "ordered combination," and that should negate the Alice rules. "There was no showing that the combination as a whole failed to provide an inventive concept," wrote the applicants. The examiner simply gave up and issued a patent that is plainly ineligible under Alice and many other cases.We've written before that the Patent Office needs to do a better job applying Alice. Unfortunately, the new Director appears to want the opposite. Other lobbyists are pushing for legislation to undo Alice entirely. If they get their way, we can expect another flood of silly patents on business methods and software.Reposted from the EFF's Stupid Patent of the Month series.

Back in September, the Ninth Circuit Court of Appeals unshockingly decided that it's illegal to arrest schoolchildren just to "prove a point." The Fourth Amendment demands probable cause for an arrest, even an arrest of students who have (slightly) diminished Constitutional rights.This was Deputy Luis Ortiz's solution to a problem he shouldn't even have been attempting to solve. Ortiz decided the students he was speaking to about alleged bullying weren't taking him seriously enough, so he tossed a few in squad cars and took them to the Sheriff's office. Nothing about this was legal, but the county decided to defend this all the way to the appellate level. The Ninth Circuit's assessment of Ortiz's actions was harsh but far more fair than Ortiz deserved.

For years, the RIAA and MPAA have pointed to the millions upon millions of takedown notices sent to Google as "evidence" that the DMCA notice-and-takedown process doesn't work. You can find lots of examples of this, but here's an MPAA VP making this exact point:

Thanks to a FOIA lawsuit, the EFF has lifted a number of redactions from documents detailing the DEA's Hemisphere program. This program was first exposed in 2013 when the New York Times obtained documents showing AT&T was working side-by-side with government agents to hand over massive amount of call records in response to DEA subpoenas.AT&T has always considered itself to be an integral part of federal government surveillance programs, often going beyond what's required to comply with demands for info. In the case of Hemisphere, it appeared to be operating as an unofficial arm of the government by "embedding" personnel in the DEA to expedite its surveillance efforts.More documents obtained by other FOIA requesters have peeled back a little bit of the secrecy. Even with redactions in place, the astonishing breadth of Hemisphere's surveillance capabilities was evident. Communications contained in the documents showed both the DEA and AT&T encouraged hiding the program from criminal defendants and the courts overseeing their cases. Parallel construction was the de facto policy, preventing anyone outside of US law enforcement from attacking the origin of evidence used against them.The EFF's lawsuit victory has revealed even more of the program's inner workings [PDF], including the forms used by the DEA to initiate phone record searches. The searches hardly appear to be targeted, as agents were able to capture an unlimited amount of call data using a single subpoena.Redactions lifted from previously-released emails show US law enforcement agencies using Hemisphere being told directly to engage in parallel construction.

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How many lawsuits does it take to get Comcast to back off of shady fees designed to falsely inflate the company's advertised prices? Good question.For several years now cable and broadband providers have been using hidden fees to covertly jack up their advertised rates. These fees, which utilize a rotating crop of bullshit names, help these companies falsely advertise one rate, then sock the consumer with a significantly higher-rate post sale (often when locked into a long-term contract). The practice also allows the company to falsely claim they're not raising rates on consumers. They omit that they're talking about the above-the-line rate being charged, implying that anything below the line (where real fees like taxes are levied) is outside of their control.Back in 2014, Comcast introduced a new $1.50 per month surcharge it called its "Broadcast TV Fee." Said fee was really just a portion of the cost of doing business for Comcast (programming), busted out of the full bill and hidden below the line -- again to help the company falsely advertise a lower price. Over the last four years Comcast has quietly but quickly pushed this fee skyward, this week informing customers that -- alongside numerous other rate hikes like its "Regional Sports Network" fees -- the company's Broadcast TV fee would now be up to $10 per month for some cable TV customers.While the federal government (FTC, FCC) routinely turned a blind eye to this practice (regardless of which party was in control), Comcast and other cable ops have been hit by a rotating crop of investigations and lawsuits for the practice. Just before Christmas, Minnesota Attorney General Lori Swanson joined the festivities, announcing that her office had filed suit against Comcast for "charging customers more than it promised for cable television packages, charging for unordered equipment and services, and not delivering prepaid Visa cards promised in its promotions."The AG's office is quick to point out that Comcast enjoys falsely telling complaining customers that the bogus fees it uses to covertly raise rates are the fault of the federal government:

India's government is joining the rest of the world in seeking more direct control of the internet. We in the US used to be able to point at Section 230 immunity and the First Amendment as evidence of our hands-off approach, but with the passage of FOSTA and multiple legislators demanding tech companies engage in more moderation and less moderation simultaneously, we've ceded a lot of the high ground.The Indian government, however, is seeking to expand its control of the internet far past what should be considered reasonable in a nation whose government pays occasional lip service to protecting free speech. In addition to its already-abused laws covering certain forms of speech -- which, in practice, tends to mean criticism of government officials -- the Indian government is demanding speedy takedowns of content and direct access for law enforcement to user info, posts, and comments around the clock.

If you're not a resident of the UK, thank the First Amendment for not turning Twitter fights into police action. The UK's anti-hate speech laws have been extended to cover merely impolite speech -- at least according to UK law enforcement agencies who say ridiculous things like this. [h/t Amy Alkon]

We've long discussed the explosion eSports has undergone over the past few years. From a largely overseas pastime, eSports has since grown leaps and bounds, with collegiate and professional programs sponsored by educational institutions and sports leagues. Buy in from major media properties in sports has occurred at the same time, including from ESPN. The trajectory of eSports has seemingly moved in only one direction: upwards.But it was always going to be the case that this progress would eventually hit a wall. Those of us interested in the acceleration of eSports have been looking for symptoms of this wall, unsure of where it would come from. Now we have something of an answer, with a prime example of why eSports needs to undergo its next step in evolution, as demonstrated by the chaos that was Blizzard shuttering its Heroes of the Storm league.For those of you not in the know, the Heroes of the Storm Global Championship was a massive thing, with hundreds of players, production crews, broadcasters, commentators, and streamers building the whole thing in to a true ecosystem. Started in 2015, the game continued to be developed to support the eSport league. Until a few days ago, when Blizzard unilaterally decided to kill it off.

Criminal defamation laws are stupid. But they're more than stupid: they're harmful. Plenty of entire countries still have them. But those countries don't have a First Amendment. With the First Amendment in place, it makes little sense to criminalize speech that can be handled through civil litigation. Nevertheless, these outdated laws are still on the books. In some cases, courts have already found them unconstitutional, but legislators seem unwilling to remove laws that are only ever abused by the government.Due to this combination of laziness and self-interest, half the country still allows the government to arrest people for engaging in alleged defamation. One of those 25 states is New Hampshire, where the ACLU is now working to have the law ruled unconstitutional.The case stems from the arrest of New Hampshire resident Robert Frese. Frese was hauled in by Exeter cops for calling the Exeter police chief "corrupt" and saying that he had "covered up" for dirty Exeter cops. The arrest of Frese for criticizing Exeter law enforcement did nothing to undermine either of his claims. If anything, it just made Exeter cops look dirtier and Police Chief William Shupe look more corrupt.The criminal defamation charges ended up being dropped by the prosecutor, who found the charge wasn't worth pursuing. That ended this criminal prosecution under the stupid state law, but it didn't get rid the stupid state law that allowed Police Chief Shupe to retaliate against Frese in the first place.That's where the ACLU comes in. Suing on behalf of Frese (and New Hampshire residents in general), the ACLU points out in its lawsuit [PDF] that criminal defamation laws are mainly used by government officials to shut down criticism or otherwise punish members of the public.

While the thinking behind the GDPR may seem sensible, time and time again we hear stories about how, in practice, it's a complete disaster. Some of that may be because of people misinterpreting the law. Some of it may be because the law is being abused. And some of it may be because the law is too vague. But some of it is just because the law tries to do way too much. So, today, we have a little story of how the GDPR nearly ruined Christmas for a small town in Germany.The town of Roth has a long-standing tradition where children would write down their Christmas wishes, which would then be placed on a tree in the market. The city council would read the wishes and try to get the children what they wanted. Nice, wholesome, holiday good deeds and all. But... it became tricky under various privacy regulations, starting with Germany's own data privacy law and, later, the GDPR, because in order to get your wishes fulfilled, children had to provide their names and identifying information... and that's a big no-no under the law:

Rep. Louie Gohmert is one of the most technologically inept Congressmen we have the misfortune of being "served" by. Getting to the top of this list isn't easy. The halls of Congress are filled with people who truly don't understand the tech they're attempting to regulate. Nor do they appear to be making any effort to educate themselves. Gohmert, however, seems to believe his position as an elected official gives him tech smarts he actually doesn't have, so he spends a great deal of time embarrassing himself when grilling tech reps during Congressional hearings.Gohmert was one of the participants in the Social Media Bloodsport Hearings of 2018. Held over the course of several months, the hearings were 75% grandstanding and 20% misunderstanding the issues at hand. Social media services have been hit hard recently for appearing to bury/deplatform right-wing accounts while simultaneously allowing the platforms to be overrun with foreign state-operated bots. It's ugly but the ignorance displayed by Gohmert and others during the hearings was just as galling.It was at these hearings a new myth about internet platform immunity came into being. Somehow, these lawmakers looked at Section 230 of the CDA and decided it required platforms to be "neutral" to avail themselves of this protection. A Senate hearing in April featured Rep. Ted Cruz demanding to know if Facebook considered itself a "neutral public forum." Mark Zuckerberg said he'd look into it, claiming he wasn't familiar with the "specifics" of the "law [Cruz] was speaking to."Bad answer. And the bad answer made Cruz look like he'd just played a successful round of "Stump the Tech Magnate." But he had done nothing more than state something not backed by actual law. That should have been the end of it, but people who really wanted to believe Section 230 immunity requires "neutral" moderation used Cruz's ignorance as the starting point for stupid lawsuits almost certainly destined for quick dismissals.It's one thing for the public to make bad assumptions about federal laws. It's quite another when federal lawmakers do it. Rep. Gohmert, playing to the home crowd [read the replies], has declared he's going to strip immunity from service providers who "use algorithms to hide, promote, or filter user content."

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Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it's also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE's Samantha Harris explains first the background of the case:

As T-Mobile and Sprint attempt to merge (once again), their executives are making all the usual claims ahead of such mergers: that the mega deal will create immeasurable "synergies", that the reduction of major U.S. wireless competitors from four to three will somehow create competition, that the deal will somehow make it easier for them to deploy next-gen "5G" networks, and that the deal will somehow magically create oodles of new jobs.Of course if you've studied telecom history or been a part of one of these deals as a mid or low level employee, you probably know these claims are almost always bullshit. Usually what happens is nothing changes for a year, as the buyer tries to sooth employee and media concerns about people being shitcanned. Not long after that, most of the redundant positions start to get eliminated, specifically, in a merger like this one, in middle management, support, and retail. T-Mobile CEO John Legere has repeatedly tried to claim the exact opposite, insisting to anybody who'll listen that this time is sure to be different:

We've got a tie for first place on the insightful this week, with a pair of comments from our post about YouTube's $100-million upload filter (and all its failings). First up, we've got an anonymous comment noting that YouTube even allows the removal of private archival videos:

Five Years AgoThis week in 2013, NSA revelations continued to trickle out, such as the unsurprising fact that the agency had cracked standard mobile phone encryption, and that along with the GCHQ it was spying on UNICEF. But the backlash also started to come hard from all three branches of government: a judge ruled that bulk metadata collection is likely unconstitutional, the White House's task force issued surveillance reform recommendations that were surprisingly much more substantial than we expected (though Marcy Wheeler — then and now one of the best reporters out there keeping a close eye on the feds — wondered if this was just to stall constitutional analysis), and seven members of the House Judiciary Committee demanded a DOJ investigation into James Clapper for lying to congress (though at least one representative called this a disgrace).The NSA was in a generally unhappy place of course, and one reporter told the story of an official calling for reforms to the first amendment because of how mean the press was being to the agency — though they must not have been talking about CBS, which turned over an entire episode of 60 Minutes to NSA apologia and propaganda, or the Wall Street Journal, whose editorial board called Snowden a sociopath and opposed any rollback of NSA programs.Ten Years AgoThis week in 2008, Hasbro finally dropped its lawsuit against Scrabulous, ending a long and stupid saga. EMI was in a copyright pretzel, using Coldplay's copyright to take down a mashup video that (misleadingly) compared the songs by Coldplay and Joe Satriani at the heart of a copyright lawsuit. The RIAA was still aggressively suing students, and record labels were caught disobeying a court order about how it could use student info it had acquired (by demanding money instead of only seeking injunctive relief), and then by the end of the week the RIAA had officially decided to abandon its mass lawsuit strategy — because it had negotiated secret three-strikes deals with various ISPs.Meanwhile, more votes lost by Diebold machines in Ohio were discovered, which I mention because...Fifteen Years Ago...Why were Diebold machines still in use in 2008 anyway? This same week in 2003, the company's problems were already pretty clear. California was considering banning them from selling voting machines at all, and it was revealed that they had employed at least five convicted felons in management positions. More and more people were calling for a paper trail for the electronic votes, which Diebold offered to add to its machines — at a ridiculous jacked-up price because, as internal memos revealed, they figured the customers had no choice but to pay.This was also the week that the CAN SPAM bill was signed into law, effectively legalizing spam while not being particularly effective in restricting or controlling it. Google also quietly launched its book search feature, and this alongside some other recent launches was making more people realize that Google was going to be something much bigger and different than just a web search engine.

We've written a few times about a key DMCA case in Texas, involving the ISP Grande Communications and Universal Music Group (and, by proxy, the copyright trolling operation Rightscorp). The case has had a lot of up and downs, with the judge tossing UMG's "vicarious infringement" claims, while letting the "contributory infringement" claims move forward. In October, the court rejected UMG's attempt to bring back the vicarious infringement claims which had already been dismissed, with some fairly harsh words directed at UMG for attempting that.The latest, as first noted by Torrentfreak, is that the magistrate judge has recommended rejecting Grande's use of the DMCA safe harbor defense. I still have general issues with the idea that the "repeat infringer" part of the DMCA is being accurately described in these cases (specifically: the courts are now applying it to accusations of infringement, rather than actual infringers, which requires a court adjudication). However, the magistrate basically points out that Grande can't make use of the safe harbors because... it had no repeat infringer policy at all. Or, rather, it did, but in 2010 it stopped using it, and then never had a policy through 2016.So, without a policy, they couldn't have reasonably implemented it... and thus, no safe harbors. Given the facts of the case, that's perhaps not that surprising. The DMCA requires you to have a reasonably implemented policy (Cox lost its similar lawsuit not because it didn't have a policy, but because it didn't follow its own policy).Of course, that doesn't necessarily mean that UMG is going to win the case. Not having the safe harbor makes it harder for Grande, but not fatal. UMG will still need to prove contributory infringement, which is going to be fairly difficult to show. Earlier in the case, the court had noted "that this is not yet a well-defined area of law, and that there are good arguments on both sides of this issue." Effectively, UMG will need to show that Grande "induced" infringement by its actions, and Grande will claim it did no such thing. But it can't just use the DMCA safe harbors to get the case dismissed, rather it will need to focus specifically on the question of whether it induced people to infringe.

Somehow, it seems things move quite quickly in the Great White North. It was only in October that we discussed Canadian ISPs making a great deal of noise over the plague that is settlement letters sent to their subscribers over supposed copyright infringement. In the Canadian system, rightsholders pass along a letter to the ISP, which is then supposed to pass those letters along to the subscriber. ISPs began complaining that its own administrative burden was being repurposed as part of the copyright trolling business model, used to extract settlements purely out of fear. In November, ISPs got their wish, with a proposed law that would amend copyright law to outlaw these letters when they include these types of extortion attempts.And now, in December, the law has officially passed, bringing an end to threat settlement letters sent to subscribers through their ISPs.

Last week, we pointed out that while you might hear copyright industry lobbyists and EU regulators repeatedly insisting that all of the concerns being raised about the EU Copyright Directive are being driven by "big tech" lobbying, the actual data shows that over 80% of the lobbying effort has come from legacy copyright industries, pushing really, really hard for a massive expansion in copyright law that will fundamentally change how the internet works (and not in a good way). It's become clear, watching these lobbyists in action, that they will say absolutely anything, no matter how ridiculous, if they think it will lead to getting their beloved Article 13, where the sole purpose is to fundamentally change the internet from a communications medium, in which anyone can share anything they create, to a fully broadcast medium, where everything must first be licensed. Obviously, the legacy copyright companies want this badly, because they're in the business of licensing. And, if everyone suddenly needs to get licenses, suddenly they become relevant again.But, as we mentioned last week, those same lobbyists are freaking out that EU regulators might possibly add a "safe harbor" to Article 13. Even with a safe harbor, Article 13 is a problem, but without a safe harbor it's a disaster. The "safe harbor" would just mean that if internet companies follow specific steps to rid their platforms of infringing works, then they can't get sued. But the copyright players badly want to be able to sue, because that's how they rid the internet of this amateur competition -- by making it too costly to continue to host.But in one of the letters sent last week, by the movie and sports industries, they made an odd argument against the safe harbor. Hilariously, they claim that a safe harbor would change copyright law, and the purpose of Article 13 is to codify existing case law. Really:

On Thursday morning, I started seeing a bunch of tweets pop up in my feed from people of Iranian backgrounds, who no longer lived in Iran, who were having their entire Slack groups shut down, with the company blaming US laws regarding sanctions on Iran.

And so we're back with Facebook Derangement Syndrome. As we've noted a few times in the past, many of the freakouts about Facebook's privacy practices involve completely misunderstanding or exaggerating the nature of what Facebook did -- and presenting things not just in the worst possible light, but in an actively misleading way. This is especially true in the context of privacy questions, where many people seem to interpret Facebook's good decisions not to lock down YOUR OWN access to your own data as a bad thing and then pressure the company to lock up access to your own data, limiting what you can do with it.Of course, there is some amount of inherent conflict between open systems and privacy. Indeed, going back eleven years, we had a post highlighting the potential privacy conflicts of Facebook's "open social graph." And, of course, at the time, Facebook was celebrated for being so open and not locking up everyone's data, but enabling it to be used more widely in other systems.And that brings us to this week's big NY Times story on Facebook. As we already discussed, what it really highlighted is what a terrible job Facebook does in being open and transparent about how it uses data. But we were also left with some questions about some of the claims in the NYT report, especially regarding the claims that other companies had access to messages.As more people have looked at it, it increasingly appears that the NY Times reporting on this was really, really bad and contributed to the hysteria, rather than improving understanding. The companies that had access to Facebook messages involved software integrations where those third party apps allowed you to directly access Facebook Messenger from those apps -- in the same way that if you want to use Facebook Messenger on your mobile phone, you have to give that phone access to your messages so that... you can use FB Messenger.As Mathew Ingram notes in an article about this, early on, many people rightfully celebrated Facebook's open approach, which involved the opposite of locking down data, but purposefully exposing it to make the rest of the internet more useful. It was the kind of openness and open integration most people used to celebrate. It was the opposite of building a locked box silo of your data.Will Oremus, over at Slate, further notes that the integrations Facebook is now being slammed for in the Times were ones that people were happy about in the past, though, perhaps naively.

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Earlier this year, news leaked out about an unannounced TSA program. "Quiet Skies" was the TSA's latest boondoggle, one that sent air marshals all over the US, tailing travelers just because. Things as simple as boarding too late/too early or using the restroom at the wrong time were designated suspicious behavior. It's was such a shady program even the air marshals didn't like it. Some felt it was illegal. Others found it ridiculous. But nearly every air marshal who spoke about the program called it as waste of time and money.Following the Boston Globe's exposure of the program, the TSA was summoned to a Congressional hearing to answer questions about "Quiet Skies." The TSA admitted the program had caught zero terrorists but had managed to surveil nearly 5,000 individuals en route to this failure. The agency claimed the useless program was subject to "robust oversight" -- a claim hilariously delivered to members of Congress who had first heard about the program from the Boston Globe.

So we've long noted how broadband usage caps on fixed-line broadband connections are bullshit. While ISPs used to insist that such limits were necessary to manage "congestion," they've long since been forced to back off those justifications after analysis and their own internal documents showed this wasn't true. For giants like AT&T and Comcast, monthly broadband caps serve two purposes: one, they provide flimsy cover allowing ISPs to further raise rates on what are already some of the highest prices for broadband in the developed world. Two, they can be used anti-competitively to give themselves an unfair advantage.Case in point: ISPs will often exempt their own services from these limits while still penalizing competitors like Netflix, something the former Wheeler FCC was just starting to crack down on as an anti-competitive practice before Trump and Ajit Pai rose to power. And this week, AT&T took another step toward using usage caps as a weapon when it began informing its broadband customers that they won't face usage caps -- if they're willing to subscribe to AT&T's own streaming services:

As you'll recall, Tumblr recently decided to go the Puritan route with its platform, announcing that it would begin filtering "porn" from its platform. As we pointed out, this was bound to go hilariously wrong, with plenty of innocent content getting swept up in the auto-filters. There were already examples of this, ranging from pictures of cartoons to what looks to be accidental photos people took on their couches. You may have thought at that time that no better example could be found for how dumb auto-filters like this tend to behave.But Tumblr itself accidentally just provided such an example. Seeking to clarify what is and is not allowed, Tumblr posted a GIF of the kinds of images that would be allowed on the site: artwork, educational material, etc. It all went swimmingly... until others tried to post the exact same GIF to see what would happen.

Being fully immersed in an era of copyright protectionism, it seems that we've become numb to the effects of it in many ways. One of those effects is how fans who create content around their favorite franchises are treated. The basic policy of the entertainment industry towards fan-films and similar creations appears to be that they can either bully those projects out of existence, sue them out of existence, or do one or the other even after confusingly giving tacit approval for such projects. Those are the options in full, as far as most entertainment companies are concerned, while the public looks at those actions and shrugs their collective shoulders. You'll even occasionally hear noises such as, "Well, what did these fans expect?" All this, keep in mind, for the crime of trying to express fandom, and free advertising for the franchise they love.Well, if you're Games Workshop, the company behind the Warhammer 40k franchise, you react to a dedicated fan who has created great fan-films by hiring him to do his thing professionally.